June 28, 2012

This is an important opinion about federalism and the scope of Congress's enumerated powers. Even as the individual mandate was upheld under taxing power — and Roberts wrote about the expansiveness of that power — we have an opinion that is limiting those other 2 powers. I want to begin to talk about the Chief Justice's contribution to constitutional law as he writes about these 2 powers.

Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

What I want to do first, now that I have my hands on the opinion, is analyze the Commerce Clause doctrine.
ADDED: The Commerce Clause discussion is in Section III-A of the Chief Justice's opinion:

The guaranteed-issue and community-rating reforms do not... address the issue of healthy individuals who choose not to purchase insurance to cover potential health care needs. In fact, the reforms sharply exacerbate that problem, by providing an incentive for individuals to delay purchasing health insurance until they become sick, relying on the promise of guaranteed and affordable coverage. The reforms also threaten to impose massive new costs on insurers, who are required to accept unhealthy individuals but prohibited from charging them rates necessary to pay for their coverage. This will lead insurers to significantly increase premiums on everyone. See Brief for America’s Health Insurance Plans et al. as Amici Curiae in No. 11–393 etc. 8–9.

The individual mandate was Congress’s solution to these problems. By requiring that individuals purchase health insurance, the mandate prevents cost-shifting by those who would otherwise go without it. In addition, the mandate forces into the insurance risk pool more healthy individuals, whose premiums on average will be higher than their health care expenses. This allows insurers to subsidize the costs of covering the unhealthy individuals the reforms require them to accept....

But in fact, as we shall see in the taxing power discussion, these healthy individuals won't have to buy insurance, because they can simply opt to pay the penalty, which they rationally will do because it costs less. And this money goes to the government — it's tax revenue — and not to the insurance companies, who now have those massive new costs.

The Government contends that the individual mandate is within Congress’s power because the failure to purchase insurance “has a substantial and deleterious effect on interstate commerce” by creating the cost-shifting problem. Brief for United States 34. The path of our Commerce Clause decisions has not always run smooth, see United States v. Lopez, 514 U. S. 549–559 (1995), but it is now well established that Congress has broad authority under the Clause...

Roberts deals with the existing doctrine, which is, he says, "expansive." But this is different, because never before has Congress tried to use it it "to compel individuals not engaged in commerce to purchase an unwanted product."

The language of the Constitution reflects the natural understanding that the power to regulate assumes there is already something to be regulated...

And all the cases finding commerce power refer to some activity that is regulated. This is taking those who are inactive and forcing them to become active.

Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Every day individuals do not do an infinite number of things. In some cases they decide not to do something; in others they simply fail to do it. Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation, and—under the Government’s theory—empower Congress to make those decisions for him.

It's beyond Wickard v. Filburn because "[t]he farmer in Wickard was at least actively engaged in the production of wheat." Roberts brings up the famous "broccoli" hypothetical: The government might try to force to "buy vegetables." (Later he specifies "broccoli," so broccoli lives on as the hypothetical vegetable in constitutional law.)

Congress already enjoys vast power to regulate much of what we do. Accepting the Government’s theory would give Congress the same license to regulate what we do not do, fundamentally changing the relation between the citizen and the Federal Government.

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers....

That strikes me as odd, because it seems that the economists' idea is what is practical, while the action/inaction distinction seems more philosophical.

Next, there's the idea — pushed by the government — that everyone is already somehow “active in the market for health care” even when the use of health care services lies in the future. Eventually, they are going to participate in this market, and what Congress did was regulate their payment for these services they are consuming now or in the future. Roberts sticks to what people are doing currently, as he makes his action/inaction distinction matter. And this is a practical, economic matter, because the point of the mandate is to drag these healthy people into the pool so insurance companies can get premiums from people who don't take out more than they put in. These people are targetedprecisely because they are inactive:

It is precisely because these individuals, as an actuarial class, incur relatively low health care costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect.... If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.

Note that as Roberts explains why these people can't be regulated, he's also explaining why the health insurance companies are doomed. (But, you may think, isn't the mandate upheld under the taxing power? Again, what's upheld is the tax imposed for not buying insurance, and that's less expensive than buying insurance, and the money goes to the federal government, not to the insurance companies. Meanwhile — to make it crushingly clear — the insurance companies do have to sell insurance to people with pre-existing conditions. So these people who currently don't buy insurance because it's not worth it can start buying insurance as soon as it is worth it, and under the ACA, they can't be charged more than the people who have been buying insurance all along.)

MORE: To get the other 4 votes for the Commerce Clause position, we need to switch to the joint dissent, written by Justices Scalia, Kennedy, Thomas, and Alito. Scalia-Kennedy-Thomas-Alito track Roberts' activity/inactivity distinction, saying:

The striking case of Wickard v. Filburn, 317 U. S. 111 (1942), which held that the economic activity of growing wheat, even for one’s own consumption, affected commerce sufficiently that it could be regulated, always has been regarded as the ne plus ultra of expansive Commerce Clause jurisprudence. To go beyond that, and to say the failure to grow wheat (which is not an economic activity, or any activity at all) nonetheless affects commerce and therefore can be federally regulated, is to make mere breathing in and out the basis for federal prescription and to extend federal power to virtually all human activity....

The case upon which the Government principally relies to sustain the Individual Mandate under the Necessary and Proper Clause is Gonzales v. Raich, 545 U. S. 1 (2005) .

Remember that Scalia surprised us by concurring in Raich — based on the Necessary and Proper Clause.

That case held that Congress could, in an effort to restrain the interstate market in marijuana, ban the local cultivation and possession of that drug. Id., at 15–22. Raich is no precedent for what Congress has done here. That case’s prohibition of growing (cf. Wickard, 317 U. S. 111), and of possession (cf. innumerable federal statutes) did not represent the expansion of the federal power to direct into a broad new field. The mandating of economic activity does, and since it is a field so limitless that it converts the Commerce Clause into a general authority to direct the economy, that mandating is not “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819).

Moreover, Raich is far different from the Individual Mandate in another respect. The Court’s opinion in Raich pointed out that the growing and possession prohibitions were the only practicable way of enabling the prohibition of interstate traffic in marijuana to be effectively enforced. 545 U. S., at 22....

With the present statute, by contrast, there are many ways other than this unprecedented Individual Mandate by which the regulatory scheme’s goals of reducing insurance premiums and ensuring the profitability of insurers could be achieved. For instance, those who did not purchase insurance could be subjected to a surcharge when they do enter the health insurance system. Or they could be denied a full income tax credit given to those who do purchase the insurance....

AND: Let's go back to the Chief Justice's opinion and to his discussion of the Necessary and Proper Clause. Once Congress decides to get into the immense project of dealing with health care and health insurance — an end that easily fits within the commerce power — why don't we accord it great latitude in determining which means to use to achieve that end? We've seen that Scalia-Kennedy-Thomas-Alito said there are other means, but the case law — notably McCulloch v. Maryland — says that Congress has its choice of means. In McCulloch, Chief Justice Marshall said that the Constitution "does not profess to enumerate the means by which the powers it confers may be executed," so "the ordinary means of execution" are implied. The chosen means doesn't have to be "absolutely necessary," and "narrow construction" would make the assigned work of government "impracticab[le]," which can't be what was intended. Marshall approves of means that are "appropriate" and "plainly adapted" to the enumerated ends, if they are — and here's the mystery phrase that Scalia-Kennedy-Thomas-Alito quoted — "consist[ent] with the letter and spirit of the constitution."

Chief Justice Roberts says that the Court has been "very deferential to Congress’s determination that a regulation is 'necessary'" — but it still looks for consistency with — that phrase again — "the letter and spirit of the constitution." And Roberts essentially repeats his Commerce Clause argument here: It would allow Congress to regulate inactivity.

Even if the individual mandate is “necessary” to the Act’s insurance reforms, such an expansion of federal power is not a “proper” means for making those reforms effective.

What about Raich, then? Why was it "necessary" and "proper" to reach home-grown, home-consumed marijuana used by medical patients? Roberts says that "marijuana is a fungible commodity" and so there was potential for diversion into interstate market that could "substantially undercut" Congress's big scheme of banning marijuana (which clearly is a matter of regulating commerce). But regulating the health insurance industry is clearly a matter of regulating commerce, and the people who don't by health insurance are substantially undercutting the success of that big scheme. Here's where I thought the Court would have the most trouble, and I'm not seeing much elaboration of why this is different from Raich.

ALSO: Here's Justice Ginsburg, in dissent, talking about the Necessary and Proper Clause:

Without the individual mandate, Congress learned, guaranteed-issue and community-rating requirements would trigger an adverse-selection death-spiral in the health-insurance market: Insurance premiums would skyrocket, the number of uninsured would increase, and insurance companies would exit the market.

Yes, as we saw above, the Chief Justice clearly recognized this problem. It's an economic disaster without the individual mandate. Why doesn't that make it necessary? I can see 2 answers: 1. It is necessary. It's just not proper. And 2: Since the ACA lets the uninsured avoid purchasing insurance if they pay a tax/penalty to the federal government, and since that's what healthy people will rationally do, the scheme was never set up to work. If it doesn't even work, it doesn't make sense to call it necessary.

But Ginsburg says the individual mandate is what makes it work, so — using Raich quotes — it's an “essential par[t] of a larger regulation of economic activity” without which “the regulatory scheme [w]ould be undercut.” This makes sense if you think it's not the proper place of the courts to look at a legislative solution and make a judgment about how well it's going to work, and, I note, neither Roberts nor Scalia-Kennedy-Thomas-Alito relied on an independent judicial assessment of whether the individual mandate —with its big loophole (paying the tax) — would actually work to solve the problem it's supposed to resolve.

What Roberts and Scalia-Kennedy-Thomas-Alito did pay attention to was the "spirit of the constitution" and what is "proper." Ginsburg say that Roberts fails "to explain why the individual mandate threatens our constitutional order." He cites cases and claims this situation is different, but what is the doctrine?

How is a judge to decide, when ruling on the constitutionality of a federal statute, whether Congress employed an “independent power,” ante, at 28, or merely a “derivative” one, ante, at 29. Whether the power used is “substantive,” ante, at 30, or just “incidental,” ante, at 29? The instruction The Chief Justice, in effect, provides lower courts: You will know it when you see it.

You will know it when you see it — i.e. "I know it when I see it." Did you know "I know it when I see it" has its own Wikipedia article? You haven't given us a rule to apply, and so judges — in an inappropriately nonjudicial way — will be deciding things ad hoc.

Fine rhetoric and careful reasoning aside ... This feels like a betrayal of the principals on which this Nation was founded.

NO government deriving its powers from the consent of the governed as the Founding Fathers envisioned has the right to tax one part of the economy out of business to create/control one of its own making.

Since its now a tax, the tax must be collected so you can't just dodge not paying the penalty. So in order to make the penalty for non payment of the tax effective it will have to be at least as large if not larger than the tax.Marvelous. Now the question becomes if some one else pays the tax for you (your employer) is it subject to the gift tax or does it become a taxable income to the beneficiary?

Since its now a tax, the tax must be collected so you can't just dodge not paying the penalty. So in order to make the penalty for non payment of the tax effective it will have to be at least as large if not larger than the tax.Marvelous. Now the question becomes if some one else pays the tax for you (your employer) is it subject to the gift tax or does it become a taxable income to the beneficiary?

The left's basic principle: the Constitution is whatever we need whenever we need it. So Roberts says no to commerce but yes to tax today. If, tomorrow, the left needs yes to commerce but no to tax, that what he'll give them.

Are you suggesting as a general principle that we shouldn't worry about the destruction of constitutional limitations on governmental power so long as political limitations are available as a backstop?

It looks to me like Congress has figured out a way to get around the Commerce Clause limitations. All they have to do is order you to buy what Congress wants you to buy, and if you don't then you get taxed. Where's the limiting principle?

Lets see how the democrats spin the largest tax hike in US history, a tax that falls squarely on the middle and working class.

I wonder what our hostess will opine on the ruling and the other portions of it including the religious issue brought on by the Catholic Church (can the Church be eligible for a partial tax exception on religious grounds?) and the Medicaid mandate on the states?

And what about the tax on insurance companies now that they can't limit their losses? Are they now required to go broke?

I wonder how many democrat voters who opposed this bill will now vote a republican ticket seeing the only way to get rid of this tax is to make the house and senate veto and filibuster proof.

China must be jumping for joy as the rush to outsource will increase dramatically.

Didn't the mandate start in the Senate? Under the constitution tax bills have to start in the House.

You're correct that tax bills have to start in the House, but technically, that's not what happened here. If you look in the little legislative history box on the right hand side of the wikipedia article, you can see that the act started as a completely unrelated House bill, the "Service Members Home Ownership Tax Act of 2009." They just amended the crap out of it in the Senate (haha).

Let's not be distracted by the breadth of the taxing power. The American people exert tremendous political power against taxing. Look at the Tea Party. A political price will be paid — both for the tax and the deceit about imposing a tax.

Agreed. The power to tax has always been limited only by the political will. If the electorate doesn't vote for repeal through its legislators, well, I guess it gets what it deserves.

I agree with Jerry (first post). It will be refreshing to hear from someone who might actually have something insightful to add to our understanding of what's happened.

Roberts is getting hammered elsewhere on the right side, along with Bush who nominated him. but I'm sure he's being lauded as a real keeper on the left side of things, although doubtful those plaudits extend to Bush.

Anyway, I think Chief Justice Roberts is a very smart man and I think that there's more at work here than just a Big Win or a Big Loss for whichever side you happen to be on. I'm looking forward to Althouse helping us figure out what this all really means.

It ain't difficult. It's not like... say, Joyce's Ulysses or Cormac McCarthy's Blood Meridian or David Markson's This Is Not A Legal Opinion, all of which require reference material to be at hand.

No... this SCOTUS document is as clear as day. Written for the general public, even for Joe the Plumber. If you don't read it, you ain't got any justifiable right to comment on it!!!

And, interestingly, it could have come out in 1812 and been just as significant. Glory be to Washington and Adams for setting the Federalism standard before Jefferson and Madison could get their slimey hands on the reigns of power...

Professor--appreciate your "lets see what it says" approach. After the sound and fury are over--I would estimate a couple of days--then we can look in more detail about the decision. Seems to me the decision curtails the commerce clause as an argument, and thats a good thing down the road. Since taxation is clearly a legislative function, this decision puts the ball back into play as a political decision which it should have been all along.

It will remain to be seen how the politics play out--I think Mr Romney can now charge his campaign up re the taxation on the middle class in the depths of a recession. At any rate, the legislative branch, hopefully under the control of republicans can vitiate Obama care--time will tell

I think Mr Romney has been handed a great political issue if he has the smarts to use it.

Orion: "Congratulations Comrades! Per the Supreme Court, there are now NO limits on the power of the State!"

No, you've misunderstood Roberts' reasoning.

See, he clearly states that the government cannot compel us to purchase something we don't want -- it can't compel us to engage in commerce that doesn't already exist.

It can, however, tax the living shit out of anyone who chooses not to engage in their preferred activity. It just can't compel them to engage in it...I suppose he means at bayonet point.

So it's a tax...but then that would invalidate the whole suit, since we're not allowed to bring suit to overturn a tax. But congress claimed it wasn't a tax, so SCOTUS can still hear the case, even though it's really a tax, because...shut up, that's why.

"pauldar said...My wife who is about as political as my cat, just contacted the local Tea Party in Cincinnati after the tax increase to see what she can do to help. Way to piss off the sleeping dogs."

President obama was pulling away from Romney in the polls in Ohio before his huge victory today, and I suspect this will help him pull away even more. You might not feel that in your circles because you live in the most conservative part of the state.

"A race that last month was too close to call between Obama and Republican challenger Mitt Romney now favors the president by 9 points, according to the Quinnipiac University survey. Obama leads Romney 47 percent to 38 percent."

You folks who hang out all day on conservative blogs like this one are in a cocoon.

Just like you all assumed Obamacare was going to be struck down. I saw the knives being sharpened at the right wing blogs anticipating a 5-4 ruling against the President. And now I see them coordinating the new spin. You guys believe your own propaganda but you're not very good at convincing the rest of the country.

And tell us how Romney is going to mobilize independent voters over Obamacare when he had his own Romneycare. People are gonna see through that. Your anger over today's ruling might help you get more right-wingers to the polls on election day but I don't think it will help you with the swing voters in the swing states.

Roberts careful and brilliant reasoning on the commerce clause is irrelevant since we have now been instructed that the congress has unlimited power to require you to do this or that so long as your failure to comply with the desired behavior is taxed.

I believe that politically this is a disaster for Obama who now must explain his lie (he is a constitutional scholar, you know, who clearly understood the commerce clause was inapplicable), tell us how a tax is a good thing and then explain that we must now like that which a moment ago we hated because we have given it a different name. He is not smart enough for that.

Loafing: Most people assumed a tax argument could be upheld, narrowly. However, we didn't think the Supreme Court would call the administration liars and say it was a tax. If the decision had been made over what was argued (commerce clause), it would be unconstitutional. However, the Supreme Court recognized the administration lied, and sees it as a tax.

"It's a tax? But it didn't originate in the House. How does that fly?"

It did, in a twisted and dishonest way. The Senate hollowed out a bill previously passed by the House and packed it full with the rich creamy nougat of Obamacare, via amendments to an otherwise empty bill.

Disingenuous House and Senate procedures should never trump clear Constitutional intent. We need to pressure own Congressmen to reform the legislature's SOP to forbid that sort of nonsense: A bill should have one topic and all amendments should be required to survive a challenge that they're germane to that original topic.

My phone is ringing off the hook and I'm getting texts from both conservative and liberal friends alike about this. Some are typical, but most are scratching their heads in bewilderment (my interpretation). So, I'm reading the ruling now like you are prof, but your expertise will be a welcome thing on this.

I strongly APPROVE of your reading the opinion and providing us less-educated readers with your professional take, particularly on the Federalism issue, which I understand is your professional specialty.

I await your perspective with eager hittings of the refresh button, a 1.75L jug of vodka, and an open mind. Enlighten me, dear Professor!

I don't think people understand what Roberts did here. The Democrats care much more about results than constitutional principles, whereas the Republicans care more about the principles. Roberts managed to satisfy both sides.

In particular, it sounds like he managed to establish a defined limit on the commerce clause in exchange for upholding the mandate as a tax. As libertarian type, I think that's a good trade.

US v. Lopez was a 1995 decision that was the first since God knows when to put a limit on federal power under the Commerce clause. The SC held that possession of a weapon in a school zone did not affect interstate commerce such that the US Congress could prohibit it.

Pardon my rubocity, but I don't drool over the opportunity to hear another legal explanation of how this really controls overreach by the government.

The left can weaken the Constitution time after time, and even get kicked out for it, but the damage is never really repaired.

After 70 years of this, the thing is in ruin. I don't really take seriously the explanations of how it's really just fine - we kinda like the ancient ruin look now. It's just how you look at it. No, it's not. It's broken down, it's stepped on, it's ignored.

We are bumping against that dependable 70 year expiration date on socialism ourselves now. We either turn it nice or we turn it ugly, but it will not last. It never has.

It's really a shame that an exceptional experiment ended up like this, just another high school science project.

America was the exceptional kid in class who now seems to have fallen in with wrong crowd.

I have, previously, patronized the bottleage of Captain... uhhh... Something... I think it had "Jack" in it... certainly not Morgan, which you see on TV all the time even if you don't watch TV and therefore I find repulsive even though I haven't tasted it since college.

Rum? Better than vodka?

Reaaaaaaally

Imagine that said in a long British accent...

WHERE THE FUCK DID I HIDE THE TITO'S, MAN! I'm only on page 6 still... Concentration now! Now! NOW!

Now that the court has declared it a tax, when it goes in to effect can it challenged as an impermissible tax? It isn't an income tax and many are exempted and no two people will owe the exact same amount. Maybe the court has pulled a clever stunt by declaring it a tax and then have a tax case that rules it impermissible. Probably wisfull thinking.

I see a lot of people freaking out, but this is actually a pretty conservative opinion w/r/t federal government powers. The commerce clause can't justify mandates on individuals not engaging in commerce, and there's an actual limit (not just a theoretical one!) to how far the government can go in strong arming states by withholding funds.

As far as the mandate as a tax, i don't like it ruled that way because it was presented as something else; it was an obfuscation. But my or anyone else's not liking it doesn't mean that it's not actually a tax from a constitutional standpoint.

And the government's ability to now force you to do anything: There are already all sorts of taxes, deductions, etc., designed to encourage or discourage specific behaviors. As a tax, the mandate seems more like a change in degree, not in kind.

Finally, from a purely political perspective, this ruling is probably going to fire up the right much more than the left. Romney's spokesperson said they raised about $300k in the first half hour after the announcement.

We fall back on the people now, but we shouldn't have to, and we will continued eating away at the edges eventually leaving that impotent as well? The constitution had a very important purpose.

"A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury. From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship. The average age of the world's greatest civilizations has been 200 years.”― Alexis de Tocqueville

Mr God--"spiced" rums, Capt Morgan etc are not rum--there are several very well done "boutique" rums which are of excellent quality; for example Pritchards small batch rum. Now I will grant you that good vokda reduced to crygenic status and consumed with caviar, blinis and sour cream is wonderful. But a good rum you can drink by the tankard. Vodka--well....

Now that the court has put limits in how much the feds can extort the states to kick in to medicaid, what if a cash strapped state decides to terminate it's state funded portion will the feds be required to kick back the medicaid FiCA tax collected in that state back to the state for it to administer medicaid in that state?

I would have preferred a clean overturn of the whole act, but the argument over the mandate being a tax ... well, I can buy that. The Roberts decision rules essentially in the way I wanted, by putting a limit on the Commerce Clause. In the end, I always prefer a political solution to a Judicial solution--and upholding the ACA while simultaneously handing Obama a stunning defeat on the Commerce Clause is like Christmas morning to me. It energizes Republicans to overturn the whole thing, and to do that they need to turn out at the polls in November. The GOP has already scheduled a vote to repeal. Given the unpopularity of the ACA, this looks to be a blessing for the GOP. But that's all theory--how it works out in practice ... no one knows. Yet.

Constitutionally, I got what I wanted. Policy-wise, not so much. The John Roberts quote, "It is not our job to protect the people from the consequences of their political choices," is apt. Better to repudiate the ACA at the polls, otherwise it's just going to rear its head again and again.

Now that your dopey legal issues are gone, let's get back to why you are a bunch of hypocrites.

Perhaps you should take some to to understand the specifics of what the Court said - especially those addressing the Commerce Clause:

The Commerce Clause is not a general license to regulate an individualfrom cradle to grave, simply because he will predictably engage in particular transactions. Any police power to regulate individuals as such, as opposed to their activities, remains vested in the States.

Perhaps I am missing the "left's argument" that what Romney did in MA is the same as Obamacare?

Romeny always had that right.

Today Obamacare survives as a tax. I suspect that isn't exactly what the Dem's had in mind when they passed it.

The Court, it seems to me, preserved the mandate as something politically toxic rather than as as huge expanse of federal power.

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise northe prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences oftheir political choices.

And BTW Mr God--a good salmon is best grilled on an alder plank with a modicum of salt and pepper--as a former resident of the pacific northwest, marinating salmon is a sacrilege :) of course if you are reduced to eating farm raised salmon, I might be willing to grant you a dispensation on the marinating issue--but still...

to make it crushingly clear — the insurance companies do have to sell insurance to people with pre-existing conditions. So these people who currently don't buy insurance because it's not worth it can start buying insurance as soon as it is worth it, and under the ACA, they can't be charged more than the people who have been buying insurance all along.

Death to insurance companies. If you have stock....sell now. Or at least put in a stop loss order.

The right was getting comfortable with the idea that the Supreme Court would rescue them from the messy and difficult task of overruling Obamacare politically. Well, that did not happen, and it's probably a good thing. The Court has enunciated a strong, principled limit on the commerce clause that should have beneficial future application in limiting federal power. It's also said what we really knew all along--that the "penalty" for not buying insurance imposed by Obamacare is a tax.

Do you really think that the federal government would be constitutionally prohibited from levying a tax on each and every American to fund health care? If so, why would it be prohibited from taxing just those who do not acquire insurance?

This is not a terrible decision. Stop whining, such it up and get the political job done of repealing this law and this tax.

It's so much better to resolve this by democratic process than by a shaky Supreme Court majority.

AJ Lynch--I agree with you re Mr Justice Robert's siding on the issue--He has properly declared it a tax which puts the ball back in the political system--I think his ruling threated the needle precisely.

From the opinion: "Under that theory, the mandate is not a legal command to buy insurance.Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers..."

So NOT buying insurance is exactly the same as buying gas, or earning income, if we're talking about taxation. Now if we're talking about the commerce clause, they're completely different.

This, right here, is why the suggestion that 5 of the 9 SCOTUS justices should be non-law-school grads was right on the money.

What you've given me to understand is that the mandate is upheld, since Obamatax permits opting out with a penalty. Is that correct?

Again, what's upheld is the tax imposed for not buying insurance, and that's less expensive than buying insurance, and the money goes to the federal government, not to the insurance companies.

So the mandate is unconstitutional? Or the mandate is permitted to stand, as long as the option to pay a penalty exists?

Meanwhile — to make it crushingly clear — the insurance companies do have to sell insurance to people with pre-existing conditions. So these people who currently don't buy insurance because it's not worth it can start buying insurance as soon as it is worth it, and under the ACA, they can't be charged more than the people who have been buying insurance all along.)

Insurance compannies got in bed with a charlatan, and now they have the crabs! Now they have an incentive to send Obama and the Obamatax packing, eh?

Pure and simple, Roberts is pointing out that this bill won't be able to work in the real world. He is highlighting how it is going to fail, and has given the ammunition to the political leaders who want to strike it down through elections. Now, we must walk to the polls in November to ensure its ultimate defeat. I wish he had critized the encroaching power of the federal government, but I am not going to criticize him. In my estimation he is incredibly shrewd.

I remember when people understood what health insurance was and the market/health care costs were in line with that. We equate it with care now, and we demand that practically everything be paid for by this "insurance". This lack of education on the subject is partly what got us here.

Mr God--I look forward to more conversation about salmon and spirituous liquors--but please dont do the burning bush thing on me--my smoke alarm goes off and the Memphis fire department shows up and its the pits to explain that I pissed off Mr God :)

From the decision, in discussing medicare expansion dictated to the states by the federal government:

"In this case, the financial “inducement” Congress has chosen is much more than “relatively mild encouragement”—it is a gun to the head. Section 1396c of the Medicaid Act provides that if a State’s Medicaid plan does not comply with the Act’s requirements, the Secretary of Health and Human Services may declare that “further payments will not be made to the State.”"

So if the government threatens to withhold funds to a state, that's "a gun to the head." But if they threaten to tax the shit out of someone if they don't engage in a particular activity, that's okee dokee.

Re: the pre-existing condition. There are loop-holes in that law. My daughter has a pre-existing condition that is not covered by our current policy. If she eats a peanut and ends up in the ICU, we have to foot the bill. We checked into getting another policy after Obamacare passed that would cover her, but we were told they would not cover us at all as a family if she were included. I'd like to know what is in the fine print of that 2,000 page law.

What you've given me to understand is that the mandate is upheld, since Obamatax permits opting out with a penalty. Is that correct?

And, more importantly, does this mean that the government can force citizens into commercial activities that are not taxation - to pay insurance companies for health coverage, for example, as long as there is a penalty option for non-participation, which is taxation?

I like the principle that whether something is a "tax" or a "mandate" depends on what it is rather than what it's called. And, of course, some laws could be characterized either way -- there's no way you can say this is clearly not a mandate, but I buy that it could be a tax.

But I'm still confused how this is consistent with Congress's taxing power. Is it supposed to be a tax on income? Or is it not a "direct" tax?

"So it's a tax...but then that would invalidate the whole suit, since we're not allowed to bring suit to overturn a tax. But congress claimed it wasn't a tax, so SCOTUS can still hear the case, even though it's really a tax, because...shut up, that's why."

My thoughts exactly, as I began to read the opinion. Roberts almost says it in those words, even.

"I remember when people understood what health insurance was and the market/health care costs were in line with that. We equate it with care now, and we demand that practically everything be paid for by this "insurance". This lack of education on the subject is partly what got us here."

Couldn't have said it better, myself. I think our system of delivering health care services is in dire need of reform -- just not the ACA.

“It looks to me like Congress has figured out a way to get around the Commerce Clause limitations. All they have to do is order you to buy what Congress wants you to buy, and if you don't then you get taxed. Where's the limiting principle?”

From Justice Roberts’ opinion:

Second, Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension ofthe penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” Kurth Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra,at 38).

We have already explained that the shared responsibility payment’s practical characteristics pass muster as a tax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting)).

There should really not be surprises about the interpretation of a simple document written in the language we all understand, yet nobody ever knows what it means until we take what is almost a flip of the coin vote of these 9 people. Something is incredibly insufficient about that when it has such important repercussions. I wonder if we just flipped a coin for the last 20 years if it would make any difference as to how far off we would be from the original document's purpose.

I signed up for two emails a long time ago and one said they're dropping me because I'm not serious enough for them and now my mailbox gets a steady stream, several a day, that all say similar things and now they're saying give us money give us money give us money for specific things. They also say how much they want and what for and how much they have, and used, what they did and what they're doing.

They could use better photographers.

All the while I was reading how the Tea Party is subsumed by Republic party and in each instance I think, no, you are seeing a different thing.

"Has the Supreme Court ever served as a bulwark of constitutional liberty when the chips were down? Contrary to popular belief, and the Supreme Court’s own conception of itself, I think the answer is largely negative." Scott Johnson of www.powerline.com

"So if the government threatens to withhold funds to a state, that's "a gun to the head." But if they threaten to tax the shit out of someone if they don't engage in a particular activity, that's okee dokee."

It was also declared a tax. A giant, wonderful, $1.7 trillion tax on, primarily, the middle class (as the poor are exempt from many of the mandate requirements). I can't wait till that gets hammered more.

Which is obviously why the Dems heatedly denied this was a tax of any sort during the debate in Congress.

How, exactly, are the American people supposed to "exert tremendous political power against taxing" when the Congress can pass non-tax bills that get magically transformed into taxes by the SC after the fact?

Yeah, sure, at the next election. When there will be a wide range of issues being contested. There'll be pie in the sky, by and by, Chez Althouse.

The moment when the American people can best exert their tremendous political power is the period during which a specific proposal is being debated. Mr. Justi,ce Roberts, through his staggeringly illogical decision has just reduced that power by quite a lot.

We have nonetheless maintained that “‘there comes a time in the extension ofthe penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’”

But that is not much of a limit, beyond what can convince 5 Justices. "There comes a time..." is a poor legal standard.

I was thinking about the "power to tax is the power to destroy" quote. I've not yet had a chance to read the decision, but I would certainly hope that Justice Roberts becomes more precise.

The biggest lie about Obamacare is when the Dems defend the mandate by saying "this is about individual responsibility. I thought Repubs believed in that". As if, the same old same old tax eaters will suddenly step up and buy health insurnce with their own money.

"It should be clear by now that I didn't do this because it was good politics.

"What the country can't afford to do is re-fight the battles of two years ago.

"Today I'm as confident as ever that when we look back five years from now, or ten years from now, or twenty years from now, we'll be better off because we had the courage to pass this law and keep moving forward."

People seriously need to stop freaking out. There's a real gift to those of us who are libertarian-leaning conservatives in the decision that too many are missing because they'd rather indulge in hysteria. By calling it a tax and rejecting the Commerce Clause argument, this got reduced back to being something fixable by the electorate. And the statists can't argue with that because they have to accept the labeling of this as a tax if they want to accept the Supreme Court's ruling on the act.

There's some pain in the present and near future for a reminder to government about who actually holds the final say.

"Here is the great thing about how the USSC decides cases and writes opinions- There is ONE vote for "it is a tax", and now that is the law of the land! What a country!"

That's pretty amazing. Crafty John Roberts (or is that Dread Pirate Roberts?) found a way to expand federal power, sidestep a political controversy, tag Obama with a lie, yet recognize limits on the commerce clause that Congress cannot enact any whim or fancy under its regulatory powers.

He went to the 4 lefties and told them they had to eat that shit sandwich if they wanted the ACA to survive. And they chowed down.

He was the only one who thought it might be a tax, but they went along because thet's the only option they had.

So now the health insurers will also eat the shit sandwich they helped make. Couldn't happen to a nicer bunch.

This law forces citizens to purchase an expensive product that they may not need.

Correct. It would be different it we were to be able to choose the levels of coverage and exclude the items in the coverage that we do not need.

I don't need maternity care. That would be a miracle if it occurred and I could be famous on the Jerry Springer show. I don't need to pay for drug counseling, mental health counseling, acupuncture, massage therapy or any of the other bells. I don't desire a low deductible.

A catastrophic insurance policy, combined with a Health Savings Account, that would kick in for coverage over a 5 to 10K deductible would work well for me. But ....Nooooo..... I will be forced to buy the Cadillac plan or pay a fine...I mean be taxed.

So we are being forced to buy something or being taxed for NOT buying something. I fail to see how this is different from the mandate.

"AJ Lynch--I agree with you re Mr Justice Robert's siding on the issue--He has properly declared it a tax which puts the ball back in the political system--I think his ruling threated the needle precisely."

So what if congress decided that religions are a detriment to society and those who still wanted to participate in religion could (freedom of religion), but that they would have to pay a tax in order to do it?

If you call Obamacare a tax, it's clearly constitutional. The federal power to tax is vast. And, yes, tax us against our will. We have no constitutional right not to pay our taxes.

You can think about the draft and jury service as two examples of citizens being forced to do something against their will.

Forcing us to engage in commerce is weird. Where is the authority for that?

On the other hand, forcing us to pay a tax? Oh, yes, they can do that!

Calling Obamacare a tax is kinda brilliant, I think. Once you do that, the legal questions are easy!

I assume Scalia and company are not calling it a tax. Is Roberts the only one calling it a tax?

Calling it a tax is brilliant because Obama has hiked taxes on the American people, and now he has to campaign on that. Calling it a tax is saying to Congress, "Quit lying, no secret taxes." One of the points of Obamacare was to tax in secret. To destroy the health insurance industry in secret. To get to single payer by putting all the insurance companies out of business. Which it clearly would have done.

Congress has unlimited authority to tax and spend. Thus they have unlimited authority to go socialist. This is fair. You want to beat socialism? Vote!

And it's also fair for Roberts to call this is a tax. It's honest. It's straight. He is giving us, the American people, the truth about what Obama is doing. It is a tax. Call it a tax.

I haven't read the opinion yet, but I like the idea of calling it a tax very much. And I doubt you'll ever hear me call Roberts "Captain Squish." Roberts is attempting here to be jurisprudential. It's too bad the other 8 Justices didn't join his opinion and make it unanimous.

Legally, there are limits on the commerce clause. Liberals are asses to insist otherwise. Legally, there are no limits on the power to tax.

I say what Roberts is doing is quite fair. In no way is he stretching the law. Tell me how he's stretching the law! Do you think Obamacare is a tax? I say it is! Then if it's a tax, the Constitution allows for it. But you have to call it a tax.

I like his legal argument very much. I will bang the Roberts drum on this. Awesome.

"Correct. It would be different it we were to be able to choose the levels of coverage and exclude the items in the coverage that we do not need."

That is the worst part. Recent laws have made it illegal for me to make a contract to purchase insurance that doesn't cover certain things. Or as an employer, I can't offer a nice insurance package to my employees unless it is incredibly comprehensive (mental health, birth control, etc).

Between Obamacare and the ADA, it is very hard to start up a business.

Matthew Sablan said...It was also declared a tax. A giant, wonderful, $1.7 trillion tax on, primarily, the middle class (as the poor are exempt from many of the mandate requirements). I can't wait till that gets hammered more.

"I Callahan said... A good decision. Throws the matter back where it belongs, the political field. CJ Roberts has done good service for his nation on this one. Citizens should not rely on SCOTUS to solve their problems."

What??!! How can anyone with a straight face say this?"

By understanding what happened. The ACA was a steamroll, but the Supreme Court, by labeling it a tax, clearly took steam out of the administrations argument by subjecting it to limits. Read Rick's quote of precedent. Both the Legislature and Executive are now limited in how far they could push the notion of taxing people who don't buy private insurance.

Think about it: If this was found constitutional under the Commerce Clause, then that would've made goverment's power wide open to regulate you simply on the basis of your existence, as opposed to your activities. The Court nixed that. That's powerful. People keep missing that point, and it's driving me nuts because that part of the judgement right there is a fundamental slap at the administration, as well as a proper recasting of the ACA for what it is: A tax program that's subject to the will of the electorate. They overreached, and the Court corrected them and reminded them that they could do no more than tax. The program still stands, but the administration can no longer lie about what it is. And they'll have to accept that the people can compel their elected representatives to repeal it, if they so choose.

There's short term pain in the actual execution of the taxes. So yes, everyone's stuck with it through the first funding cycle. But the Court placed a clear limit on the congressional (and by implication, the Obama administration's) overreach in authority, and people need to calm down and see that too. The tax can be fixed by getting the vote out. But the overreach is not rescindable, and any further social legislation can never be cast as a Commerce Clause power ever again.

SCOTUS has just decreed that Congress may 'tax' you for the purpose of compelling you into some form of behavior.

In this specific case it was for the purpose of entering a private marketplace and purchasing a healthcare plan, but it doe not appear that any distinction or restriction of the manner or type of activity so compelled was made by the court.

So there is really no limit on what types of activity may be compelled, or inactivity prohibited, via the imposition of a tax.

So you can't be compelled to buy something but you can be taxed for not buying it. Somehow the brilliance of the ruling escapes me. So now the nanny state can tax you if you don't buy what ever it wants you to buy. So now we can be taxed if we don't buy life insurance, long term care insurance,disability insurance and Aflack like income replacement insurance for when you are sick less you become a free-rider but the actuall free-riders aren't obligated to pay the tax. Marvellous.

So now that court has said congress can kill the health insurance industry what recourse do the shareholders of the companies have? And once the companies are dead and gone leaving the patients with no private insurance will the court rule that the providers must accept whatever reimbursment the government offers? And if they refuse to accept government assignments will they be prohibited from fee for service by way of the taxing powers?

If congress wants to avoid the companies going broke or going in to other lines of business they will of necessity make the penalty-tax equall or greater than the cost of insurance purchase. Marvelous. I do hope they have the decency to at least make the Obamacare penalty-tax deductible for income tax purposes.

I'm a bit unclear. So the commerce clause does not allow the government to force you to buy insurance, but the taxing power allows the government to tax you into the ground if you don't buy insurance? What is the limiting principle here? For example, the government can't force you to purchase a flat-screen TV under the commerce clause, but it can impose punitive taxes if you don't that effectively force you to do just that. It sounds like a game of semantics that results in a massive expansion of federal authority so long as a punitive tax is involved. The logic is muddled and the end result is nonsensical.

"We aren’t going to spend X trillion dollars on Obamacare, because we do not have X trillion dollars to spend. The trick is for voters to get that through Washington’s thick skull before the bond market does.

The Court may not have been on our side today, but the math still is."Kevin D. Williamson www.nationalreview.com

I'm a bit unclear. So the commerce clause does not allow the government to force you to buy insurance, but the taxing power allows the government to tax you into the ground if you don't buy insurance? What is the limiting principle here?

C'mon, ihasch, get with the program. This is a brilliant tactical move by Roberts. Cuz it's a tax 'n' stuff, instead of a regulation. And everybody hates taxes! Especially the taxes they pay only when doing so saves them money on health insurance.

Or something like that; I'm still having trouble following the argument.

"That is not the end of the matter. Because the Commerce Clause does not support the individual mandate, it is necessary to turn to the Government’s second argument: that the mandate may be upheld as within Congress’s enumerated power to “lay and collect Taxes.” Art. I, §8, cl. 1."

I don't recall much, if any, discussion of the government's "second argument."

Throws the matter back to the political field? That's a desired outcome?

That's idiotic. The legislature doesn't have to DO anything with this. It's law. The mandate on citizens isn't in effect yet but billions are already being spent building a regulatory infrastructure that won't be easy to dismantle. Don't think that just because the insurance requirement hasn't kicked in yet, that there isn't some serious inertia being developed by a big government agency kicking into gear.

The desireable outcome was to kill this bill today. Everything after this is just an attempt to minimize the damage.

I would hope that this will shut the so called Moderate Republicans up. Since "Moderate Republicans" allowed this POS to stand. There are 2 parties in this country. The socialist Democrats, and their junior league, the Rino's. Rino's gave us Bush II, POS Roberts, the ADA, and now the ACA. And their fixing to give us Romney. God, we are so fucked. Every Republican that isn't conservative can go fuck themselves, after the Democrats get through with them.

By understanding what happened. The ACA was a steamroll, but the Supreme Court, by labeling it a tax, clearly took steam out of the administrations argument by subjecting it to limits.

I get that argument and see how people can say Roberts was clever for making it. But I still think that if Roberts truly believed the mandate to be a tax DESPITE the assertions of Congress and the Administration to the contrary, the proper course of action was to strike the law down in its current form and send it back to be rewritten, clearly, as a tax.

I am wondering if the limit the court put on the Medicaid expansion is being underrepported here. If my understanding is correct, the court said that the government could not kick a state out of the current medicaid program if a state refused to participate in the expansion program. I think that this medicaid expansion piece that was the true jewel for liberals and not the mandate. This medicaid expansion piece was supposed to cover most of the new uncovered people and was a sub rosa way to get taxes raised on people by the states. How will a state like California convince its citizens to raise massive taxes to pay for the new medicaid program now that they won't suffer for not doing it.

Now that a state does not have to give up its existing medicaid program that covers the poor.... will they vote to raise massive taxes to participate in Obamacare? I kind of doubt it.

I am eerily reminded of Dred Scott v. Sanford, another case in which a respected and scholarly Chief Justice authored an opinion in which he attempted to remove the Supreme Court from what he saw as a political question.

In Dred Scott Taney reasoned (probably quite correctly) that the Constitution as written and construed before 1857 did not make slaves and descendants of slaves citizens of the United States. He pointed out that this was not necessarily a good thing, but it was how matters actually stood, and if it was to be changed, the people themselves would have to change it, e.g. by amending the Constitution.

That they did, of course. But one assumes Taney did not foresee the Civil War that lay between his principled refusal to cut the Gordian constitutional knot and the passage of the Fourteenth Amendment, and consequently he goes down in history as a racist clown on the wrong side of history.

I wonder if Roberts has done something similar to himself here. It's possible, I suppose, that the American people are now prepared to turn themselves into socialist Europeans, and grant their central government essentially unlimited power. But if, as seems somewhat more likely, this decision energizes Americans to undo Obamacare, and perhaps to forcefully re-establish constitutional limits on the power of Congress, Chief Justice Roberts, like Chief Justice Taney, will go into history (fairly or not) as a clown on the wrong side of history.

Who is to collect the Tax? Deduct from incomes? How about the unemployed, the folks who clip tax-free govt bond coupons, and the ultra rich trust fund kids who don't work? How do we "share" their fortunes? How much?How to distribute said tax? Death and Sick Panels? Single payer? Create another govt. agency (funded by another tax increase) for another "entitlement"?Death of insurance companies and insurance jobs, add a couple % to unemployment?

And if I do get swatted good. I'm in a really bad mood from personal problems, a little target practice and going down in the history books as the second coming of Crispus Attucks would be a better legacy for my grandchildren than POS Roberts left for his. It's hot, muggy, and I'm mad! Who wants to die?!

" The law was upheld on a basis — the taxing power — that the Administration didn’t advance."

The U.S. Solicitor General did argue that the mandate was legitimate under Congress' tax power.

JUSTICE SOTOMAYOR: I have to look for a case that involves the issue of whether something denominated by Congress as a penalty was nevertheless treated as a tax, except in those situations where the code itself or the statute itself said treat the penalty as a tax.Do you know of any case where we've done that?

GENERAL VERRILLI: Well, I think I would point the Court to the License Tax Case, where it was -­was denominated a fee and nontax, and the Court upheld it as an exercise of the taxing power, in a situation in which the structure of the law was very much the structure of this law, in that there was a separate stand-alone provision that set the predicate and then a separate provision in closing - ........

ETC.....

JUSTICE SCALIA: You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power.